Dominion Res. Servs., Inc. v. Alstom Power, Inc.

DOMINION RESOURCES SERVICES, INC. et al., Plaintiffs, v. ALSTOM POWER, INC., Defendant.

CIVIL ACTION NO. 3:16-cv-544 (JCH)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JULY 12, 2019

RULING RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. NOS. 129, 131, 132, 134)

Plaintiffs, Dominion Resources Services, Inc., Dominion Resources, Inc., Dominion Energy, Inc., Dominion Generation Corporation, and Dominion Technical Solutions, Inc. (collectively "Dominion" and "plaintiffs"), bring this action concerning alleged breach of a contract against defendant Alstom Power, Inc. ("Alstom"). See Amended Complaint ("Am. Compl.") (Doc. No. 45) at 1.

Before the court are the parties' Cross-Motions for Summary Judgment. See Motion for Summary Judgment on Phase I ("Pl.'s MSJ") (Doc. No. 129); Motion for Summary Judgment Dismissing Plaintiffs Breach of Contract Claims ("Def.'s First MSJ") (Doc. No. 131); Motion for Summary Judgment Dismissing Plaintiffs Claims as Barred by the Statute of Limitations ("Def.'s Second MSJ") (Doc. No. 132); and Motion for Summary Judgment on the Pleadings and Alternative Motion for Summary Judgment ("Def.'s Third MSJ") (Doc. No. 134).

For the reasons stated below, the Motions for Summary Judgment are granted in part and denied in part, and the Motion for Judgment on the Pleadings is denied.

I. STANDARD OF REVIEW

A. Summary Judgment

On a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that the party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 71-72 (2d Cir. 2016). Once the moving party has met its burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial," Anderson, 477 U.S. at 256, and present "such proof as would allow a reasonable juror to return a verdict in [its] favor," Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). "An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016).

In assessing the record to determine whether there are disputed issues of material fact, the trial court must "resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought." LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 175 (2d Cir. 1995). "Where it is clear that no rational finder of fact 'could find in favor of the nonmoving party because the evidence to support its case is so slight,' summary judgment should be granted." F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). On the other hand, where "reasonable minds could differ as to the import of the evidence," the question must be left to thefinder of fact. Cortes v. MTA N.Y. City Transit, 802 F.3d 226, 230 (2d Cir. 2015) (quoting R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997)).

When, as here, both parties come before the court on cross-motions for summary judgment, the court is not required to grant judgment as a matter of law for either side. See Ricci v. DeStafano, 530 F.3d 88, 109-10 (2d Cir. 2008). "Rather the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Id. at 110.

B. Motion for Judgment on the Pleadings

In deciding a Motion for Judgment on the Pleadings, pursuant to Federal Rule of Civil Procedure 12(c), courts "employ[ ] the same standard applicable to dismissals pursuant to Fed. R. Civ. P. 12(b)(6)." Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (alterations in original). Therefore, courts "accept all factual allegations in the complaint as true and draw all reasonable inferences in [plaintiffs'] favor." Id. To survive a Motion for Judgment on the Pleadings, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id.

II. FACTS¹

Dominion and Alstom executed a contract titled "Amended and Restated Alliance Agreement" ("Alliance Agreement") on February 1, 2005. Plaintiffs' Local Rule 56(a)(2) Statement of Material Facts in Opposition to Motion for Summary Judgment ("Pl. SOF") ¶ 1. The Alliance Agreement applied to certain services provided by Alstom related tothe construction, operation, and maintenance of Dominion's power generation facilities. Id. ¶ 2. Dominion and Alstom agreed that the Alliance Agreement would be construed in accordance with Virginia law. Id. ¶ 3. The Alliance Agreement's General Terms and Conditions were Dominion's standard terms and were prepared by Dominion. Id. ¶ 4. Section 5 of the Alliance Agreement contained the parties' rights and obligations as to one another regarding indemnity and defense in the event of certain claims filed against either party. See id. ¶ 5; Pl. SOF, Ex. 1 ("Alliance Agreement") (Doc. No. 133-1) at 39-40. Section 7 of the Alliance Agreement required Alstom to obtain and maintain insurance policies, including "commercial general liability insurance." Pl. SOF ¶ 6. The Alliance Agreement stated that Alstom and Dominion each would, "to the extent permitted by its insurers, require each of their respective insurers to waive all rights of recovery against each other, whether in contract, tort (including negligence and strict liability) or otherwise." Id. ¶ 7.

Prior to the execution of the Alliance Agreement, Dominion and Alstom did not discuss whether the Agreement required the parties to obtain "non-eroding" insurance policies. Id. ¶ 9. Alstom obtained a primary insurance coverage ("the Zurich Policy") and an excess insurance policy ("the Allianz policy") for the 2007-2008 period, both of which contained "eroding" limits of liability. Id. ¶ 13. Dominion was an additional insured party under both policies. Id. ¶ 26. The Alliance Agreement required Alstom to provide Dominion with Certificates of Insurance; Alstom submitted such a certificate in March 2007, confirming that Alstom had obtained the Zurich and Alliance Policies. Id. ¶ 28. The March 2007 Certificate of Insurance included the representation that Alstom had obtained "Commercial General Liability" coverage. Id.

In April 2007, Alstom performed an inspection of a boiler at a Dominion-owned power generating station in Massachusetts. Id. ¶ 33. In November 2007, the boiler failed, resulting in injuries—including fatal injuries—to five workers at the Dominion facility. Id. ¶ 36. In May 2009, the workers and the estates of the workers injured and killed in the accident filed a lawsuit (the "Underlying Litigation") in Massachusetts state court. Id. ¶ 37. The plaintiffs in the Underlying Litigation alleged that the boiler accident was caused by the fault of Dominion, Alstom, and other defendants. Id. ¶ 39.

On July 24, 2009 and September 26, 2009, Alstom made written demands on Dominion that Dominion defend and indemnify Alstom for the claims in the Underlying Litigation. Id. ¶ 40. Dominion denied those demands in a letter dated September 29, 2009. Id. ¶ 41. In the same letter, Dominion noted its position that, "[i]n the event that Plaintiffs' claims against Dominion are determined to be 'arising out of, resulting from, or caused by or to the extent in connection with any of the Materials or Equipment supplied or Services performed by Alstom'" and the Alliance Agreement's exception to the duty to indemnify, that Alstom would be "obliged to indemnify Dominion." See Defendant's Local Rule 56(a)(1) Statement of Material Facts, Ex. F ("Notice of Claims Letter") (Doc. No. 135-6) at 3-4. Dominion further noted that the letter was meant to fulfill the requirement of written notice in accordance with Section 5 of the Alliance Agreement. Id. at 4. Dominion did not expressly use the word "defend" in its Notice of Claims Letter. Pls.' SOF ¶ 42. The Notice of Claims Letter was the only written notice to Alstom, prior to the current action, concerning the claims in this action. Id. ¶ 43.

On December 15, 2009, Dominion and Alstom entered into a tolling agreement ("the Tolling Agreement"), concerning the Underlying Litigation. Id. ¶ 45. The TollingAgreement stated that Dominion would have "one year from the date of any settlement or final judgment to bring any action for, or related to, indemnification, contribution, or any other claim or cross claim that may be asserted against (Alstom) with respect to the claims asserted in the [Underlying] Litigation." Id. ¶ 46.

On March 23, 2015, the Massachusetts court in the Underlying Litigation entered an "Order for Entry of Dismissal Nisi," providing that the action had been "REPORTED SETTLED to the Court by counsel." Id. ¶ 57. The Order noted that a judgment of dismissal was to enter on June 22, 2015. Id. On April 7 and 9, a judge in the Underlying Litigation made notations on pleadings filed in the Massachusetts action, stating that the settlements were "fair and reasonable." Id. ¶ 63.

III. DISCUSSION

A. Alstom's Motions

Alstom has filed three Motions for Summary Judgment, and a Motion for Judgment on the Pleadings. See Doc. Nos. 131, 132, and 134. In its first Motion, Alstom argues that summary judgment in its favor is warranted because (1) no admissible evidence establishes that Alstom had an obligation under the Alliance Agreement to obtain a "non-eroding" insurance policy, see Def.'s First MSJ (Doc. No. 131) at 6; (2) Alstom complied with its contractual duties by procuring the insurance policies at issue in this case, id. at 18; (3) Dominion did not suffer any recoverable damages; and (4) Dominion's alleged damages were not caused by Alstom's breach, or were alternatively barred or...